Land and Environment Court of New South Wales CITATION : Masling v Ku-ring-gai Council [2004] NSWLEC 394 APPLICANT Kevin Masling PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10029 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Dwelling house impact on streescape-bulk and scale LEGISLATION CITED: CASES CITED: DATES OF HEARING: 04/05/04, 01/06/04, 11/06/2004 EX TEMPORE 06/11/2004 JUDGMENT DATE : APPLICANT Mr D Baird, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 11 June 2004 10029 of 2004 Kevin Masling v Ku-ring-gai Council JUDGMENT 1 This judgment is for an appeal concerning a development application submitted to Ku-ring-gai Council for a dwelling house at the property known as No. 22 Slade Avenue, Lindfield. These proceedings commenced as an on site hearing. At that time the development application was not satisfactory and the Court gave the applicant the opportunity to submit an amended development application. This significantly lowered the level of the garage and ensured that the building did not read as a three storey dwelling from the street. 2 Other amendments included the driveway, the front fence, and the upper storey. Following an adjournment he development application came back to the Court with an amended plan and the council has had the opportunity of assessing same as well as the council's development assessment consultant, Ms Laidlaw who provided comments to the Court. The Court in many respects agreed with many of her concerns and further amendments were then required to the plans. 3 The plans recently submitted to the Court and received on 8 June 2004 are in accordance with the discussions held on site and further discussions and concerns expressed on the last occasion when we met in court. An amended landscape plan was also provided with the development application known as L1C and this also satisfies the landscaping requirements of council's development control plan. 4 The proposed dwelling it is noted is in excess of council's development control plan for dwelling houses in terms of the floor space ratio. The Floor Space Ratio (FSR) in the Development Control Plan is approximately 0.381, the subject dwelling is 0.461 and that is significantly over the FSR. However, I am satisfied in terms of the amendments that have been carried out, the reduction in the height of the dwelling and the landscaping, that the proposed dwelling will sit comfortably on the land and will not be unsatisfactory in terms of its presentation to the street. 5 It was submitted for the applicant that there were no objections to the proposal, however, that is not the test for the Court. The Court must be assured that the proposed dwelling in terms of its built form and outcome are acceptable and contribute positively in a streetscape context having regard to council's controls and the zoning of the subject land. The subject land is zoned for the purposes of residential dwellings and it is noted there are also some multi unit developments in and around the area. The general character of the area is single dwellings on large allotments. 6 The streetscape presentation and a contribution to the leafy vegetative amenity of the area is important to the character of the area and should be conserved in developing this part of the municipality of Lindfield. Opposite the subject site there is a reserve that is clearly used by the public as well. Therefore the subject site can be viewed from the public domain of the street and reserve. 7 The Court in terms of the variations and amendments that have been done to the plans is now satisfied that the proposed development is one that is worthy of approval. And in my assessment there is no reason why a consent should not be granted. 8 I acknowledge in my judgment that the council has been most cooperative in its approach to this matter and its comments have certainly contributed to the amended application that is now acceptable. 9 The applicant expressed concern on the last occasion that we met about his frustrations with the lengthy process. On that occasion it was pointed out that the council's controls must be a focal point in the formulation of developments as well as in the assessment of developments. The applicant on that occasion indicated that it had compromised on numerous matters. The applicant may have what it considers compromised but at the same time in the Court's assessment it is important that development makes a positive contribution and the Court must give genuine, proper and real consideration to council's controls. 10 The process that we have embarked upon has resulted in a development which is now satisfactory and as I stated both parties have contributed to what the Court now considers to be a satisfactory outcome. 11 On the basis of my assessment the orders of the Court are; 1. The appeal in respect of the property known as No. 22 Slade Avenue, Lindfield, is upheld in part. 2. The development application submitted to Ku-ring-gai Council, and as amended as shown in: the plans prepared by Arch-Serv, Architects & Project Managers, Issue "C" dated 8 June 2004; the amended landscape plan L1 'C' prepared by Wallman Partners Pty Ltd; and Exhibit H, the schedule of materials and finishes, is approved subject to the conditions contained in Annexure "A". 3. The exhibits except for 1, G and H are returned. J S Murrell Commissioner of the Court Nmc/rjs Annexure A Conditions of Development Consent Kevin Masling v Ku-ring-gai Council Premises: 22 Slade Avenue, Lindfield GENERAL CONDITIONS 1. The development to be in accordance with Development Application No 24/03 and amended Development Application plans prepared by ARCH-SERV Architects and Project Managers, reference number 4 MSDA01-09 all being issue "C" plans amended as at 8 June 2004 and plan 04—15 MSDA 14 issue 'B' also amended as at 8 June 2004 (being Exhibit 'G' in the proceedings) together with the landscape plan prepared by Wallman Partners Pty Ltd issue "C" amended as at 7 June 2004 and schedule of colours and finishes being Exhibit "H" in the proceedings all except as amended by the following conditions:- 2. All building works shall comply with the Building Code of Australia. 3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority's By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work. 4. The works set forth in the plans and specifications and approved under this consent, once commenced, shall be completed within two (2) years from the date of commencement. 5. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and a Occupation Certificate has been issued. 6. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works. 7. For the purpose of health and amenity, the disposal of backwash and/or the emptying of a swimming pool into a reserve, watercourse, easement or stormwater drainage system is prohibited. These waters are to discharge via a permanent drainage line into the Sydney Water's sewer. Permission is to be obtained from the Sydney Water prior to the emptying of any pool to the sewer. 8. To ensure compliance with the relevant standards, an effective and approved safety fence with self closing gate complying with the minimum requirements of Australian Standard 1926-1986 "Fences and Gates for Private Swimming Pools" shall be provided to the Principal Certifying Authority's satisfaction in the location indicated on the approved plans prior to any water being placed in the pool. 9. For stormwater control, provision shall be made for the collection and disposal of all run-off surface waters from paved areas, recontoured areas, pool overflow and higher levels. All collected waters are to be dispersed without causing nuisance to the adjoining properties. 10. For safety purposes, depth markers shall be provided at both ends of the pool. 11. For safety purposes, prior to the pool being filled a weather resistant poster detailing expired air resuscitation (mouth to mouth) methods shall be affixed within plain sight of the pool. A sign/notice with the words "YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS SWIMMING POOL" shall be erected in clear view and in close proximity to the pool. 12. All filtration equipment shall be located in the position as shown on plan, unless as varied by this consent. Where the filtration and electrical equipment is located near a boundary, such equipment shall be positioned not closer than 150mm from the boundary fencing, if any, and electrical conduits and fittings or circulation pipes shall not be attached to any part of the fencing. Filtration or other equipment shall not be installed in the area of the side boundary setback of the dwelling or outbuilding unless that side boundary setback is greater than 1500mm. For the purpose of residential amenity, the filtration motor pump unit shall be housed in a sound attenuating enclosure and located where indicated on the approved plans or as varied by this consent. 13. A balustrade shall be provided where the pool concourse stands more than 1.0 metre above the finished ground level. 14. To ensure structural stability wherever the soil conditions so require, a retaining wall or other approved method of preventing the movement of soil shall be provided and adequate provision shall be made for drainage. 15. Access to the spa pool is to be restricted at all times when the spa is not in actual use by the use of a cover of secured by a child safe structure (such as a door, lid, grille or mesh) that is fastened to the spa by a child resistant device. Details are to be submitted to the Principal Certifying Authority for approval prior to installation. 16. To ensure compliance with the Swimming Pools Act, 1992, the existing boundary fence, forming part of the safety fencing to enclose the pool shall be upgraded or otherwise so altered or reconstructed so as to comply with the provisions of Australian Standard 1926-1986 "Fences and Gates for Private Swimming Pools". The overall height of the dividing fence is not to exceed 1.8 metres in height above the natural ground level. Attention is directed to any obligations or responsibilities under the Dividing Fences Act in respect of adjoining property owners which may arise in respect of this matter and enquiries in this regard may be made at the nearest Local Court. 17. For the purpose of residential amenity, details of proposed soundproof enclosure design to house all spa pumping units shall be prepared by a practising acoustical engineer and shall be submitted to the Principal Certifying Authority for approval. Noise levels are not to exceed 5dB(A) at the boundaries of the site. 18. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures. 19. Access to demolition sites shall be protected as directed by the Principal Certifying Authority by the use of suitable fences or hoardings. 20. Where a new development is not commencing immediately following demolition, the demolition shall be limited to the extent of the footprint of the building/s on the site and no excavation shall be carried out. 21. Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. 22. Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems. 23. Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment. (a) A person taking down or demolishing or causing to be taken down or demolished any building or portion of any building shall: (i) cause the windows or other openings in the external walls to be close boarded or otherwise covered; (ii) cause screens of canvas, hessian, boards, mats or other suitable material to be fitted in appropriate locations; (iii) cause areas, components and debris to be wetted down; in such a manner as to minimise, as far as practicable, the nuisance arising from the escape of dust during such taking down or demolition. (b) Such person shall not chute, throw or let fall or cause to chute, throw or let fall from the floor to floor or into any basement of such building any building materials or any other matter so as to cause dust to escape from the building or cause any such material to fall or cast upon a public way to the annoyance, inconvenience, or danger of persons using such public way. 24. Soil on vacant sites is to be stabilised as soon as possible to prevent erosion and the site shall be kept clear of excess vegetation. 25. A temporary construction exit and sediment trap to reduce the transport of sediment from the site onto public roads shall be provided before demolition commences. 26. Existing stormwater lines on the site are to be blocked and made inoperable after buildings are demolished so as to prevent the conveyance of silt or sediments into the gutter or street drainage system. 27 All combustible material shall be removed from the site on a daily basis. Material shall not be burnt on the site. 28. Materials salvaged from a demolition may be stored on site provided they are non combustible, neatly and safety stockpiled and not likely to become a harbourage for vermin. 29. Trees and vegetation on a site shall not be disturbed except with the approval of the Council. 30. Adequate precautions shall be taken to ensure the protection of adjoining premises and persons therein from damage and injury during the process of demolition. 31. The applicant or builder/developer is responsible for the cost of making good any damage that may be caused to any Council property as a result of work associated with the demolition. 32. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: (a) stating that unauthorised entry to the work site is prohibited, and (b) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed. This clause does not apply to: (a) building work carried out inside an existing building, or (b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. 33. To prevent pollution, all vehicles making a delivery to or from the site are to be covered to prevent loose materials, dust etc falling from the vehicles. 34. Topsoil shall be stripped from areas to be developed and stock-piled within the site. Stock-piled topsoil on the site shall be located outside drainage lines and be protected from run-on water by suitably positioned diversion banks. Where the period of storage will exceed 14 days stock-piles are to be sprayed with an appropriate emulsion solution or seeded to minimise particle movement. 35. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times. 36. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be. 37. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant. Whilst work on Saturdays maybe performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment. 38. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works. 39. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority. 40. To maintain existing ground levels all excavated material shall be removed from the site. 41. Any excavation of rock involving hydraulic or compressed air rock hammers or other excavation equipment shall comply with the requirements of Council's Code for the Control and Regulation of Noise on Building Sites. 42. No rock breaking or other machinery for the excavation, drilling or removal of rock shall be used on the site without the prior approval of the Principal Certifying Authority. Should rock breaking or associated machinery be required, the following details are to be submitted to the Principal Certifying Authority for consideration: (a) The type and size of machinery proposed. (b) The routes of all trucks to convey material to and from the site. (c) A report by a Geotechnical Engineer detailing the measures recommended in undertaking the work so as to prevent any damage to any adjoining or nearby buildings. 43. For the purpose of maintaining visual amenity, no permanent electricity supply poles are to be erected forward of the building setback without the prior Consent of Council. It is the onus of the applicant to consult with the authorised statutory electricity provider prior to construction commencing to ensure that direct connection to the building is possible. Details of any proposed permanent pole must be submitted to and approved by Council prior to installation. 44. The applicant is advised that the Construction Certificate plans and specifications must comply with the provisions of the Building Code of Australia. 45. Toilet facilities are to be provided, within the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. 46. To maintain residential amenity, all electrical services to the site are to be provided underground and must not disturb the root system of any trees. Please contact the energy supply authority's local customer service office to obtain documentary evidence that the authority has been consulted and that their requirements have been met. This information is to be submitted to Council prior to the release of the occupation Certificate. 47. The developer shall submit to Council a letter from the energy supply authority and either Telstra or Optus, confirming that satisfactory arrangements have been made for the provision of underground telephone and power services, prior to the release of the Subdivision Certificate or Occupation. Application may be made to Energy Australia Phone No. 13 1525 and either Optus, Network Operations, Facsimile No 9837 9060, Phone No 9837 9010, or Telstra Phone No 12 455. 48. All noise generating equipment associated with any proposed mechanical ventilation system/s shall be located and/or soundproofed so the equipment is not audible within a habitable room in any other residential premises before 7am and after 10pm Monday to Friday and before 8am and after 10pm Saturday, Sunday and Public Holidays. Furthermore, the operation of the unit outside these restricted hours shall emit a noise level of not greater than 5dbA above the background when measure at the nearest adjoining boundary. 49. Construction should always comply with AS 3959-1999 Level 3 `Construction of Buildings in bushfire prone areas'. 50. The entire property shall be managed as an inner protection area as outlined within Planning for Bushfire Protection 2001. 51. For stormwater control a 150mm wide grated drain with heavy duty removable galvanised grates is to be located within the property at the intersection of the driveway and Council's footway to collect all surface water from the driveway. The drainage line shall be connected to the street system. 52. Stormwater runoff from all hard surfaces, or landscaped areas which are not at natural ground level, shall be piped to the street drainage system. Drainage line connections to the kerb shall conform and comply with the detailed requirements contained within Council's Plan No82/024 ("Connections of Drainage Lines to Kerb and R.C. Pipe"). Drainage crossings of the footway area shall be a single 100mm diameter sewer grade uPVC pipe, where the total design flows from the property are within the capacity of such a pipe, otherwise suitably sized galvanised RHS shall be used. To ensure compliance with this condition, a Certificate from a suitably qualified person is to be submitted to the Principal Certifying Authority. 53. For stormwater control, an On-site Stormwater Detention System is to be provided in accordance with Council's Stormwater Management Manual. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location. The system is to be cleaned regularly and maintained to the satisfaction of Council. NOTE 1: The on-site stormwater detention system and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist's certification that such excavation will not affect the longevity of the subject tree(s). NOTE 2: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council's Stormwater Management Manual, a detailed analysis must be provided following the guidelines set out in Council's requirements for on-site detention with full computations accompanying the submission including a flood routing analysis. NOTE 3: All roof, driveway and other hard-surface runoff water is to be intercepted and directed to the on-site stormwater detention system. If some areas of hard-surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge. NOTE 4: If a landscaped surface type detention system is used the storage volume required is to be increased by 20%. NOTE 5: The standard Council On-site Stormwater Detention Calculation Sheet is to be completed and included on design drawings. 54. The relocation or adjustment of any utility service facilities are to be carried out by the Applicant in accordance with the requirements of the utility authority at no cost to Council. 55. The public footways and roadways adjacent to the site are to be maintained in a safe condition, at all times, during the course of the works. 56. For the purpose of Council inspections, the appropriate fees set out in Councils adopted Schedule of Fees and Charges are payable to Council, prior to the release of the approved plans. A re-inspection fee per visit may be charged where remedial work is unprepared at the requested time of inspection or where remedial work is unsatisfactory and a further inspection is requested. Engineering fees must be paid prior to the final approval of the works. 57. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council's Tree Preservation Order) without prior written consent of Council is prohibited. 58. Removal of the following tree/s from Council's nature strip to permit vehicular access shall be undertaken at no cost to Council by an experienced Tree Removal Contractor/Arborist holding Public Liability Insurance amounting to a minimum cover of $10,000,000. Tree/Location Melia azedarach 'Australasica' (White Cedar) Within the proposed driveway crossing site. 59. The following tree species shall be planted, at no cost to Council, in the nature strip fronting the property along Slade Avenue. The tree/s used shall be 25 litre container size specimen/s: Tree Species 1 x Angophora costata (Sydney Red Gum) OR 1 x Eucalyptus punctata (Grey Gum) 60. Following removal of the Melia azedarach 'Australasica' (White Cedar) from Council's nature strip, the nature strip shall be rehabilitated to the satisfaction of Council's Director Open Space at no cost to Council. 61. Removal of vegetation/inner protection area, removal of vegetation within the property shall be carried out by hand to: (a) Remove leaf litter (b) Remove all weeds (c) Cut off just above ground level shrubs and bracken (d) Remove any branches of trees up to 3.0 metres above ground level 62. On completion of the tree planting, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance. 63. The following noxious and/or undesirable plant species shall be removed from the property prior to completion of the proposed building works. Documentary evidence of compliance with this condition shall be submitted to the Principal Certifying Authority prior to the release of the final Compliance Certificate: Plant Species Asparagus densiflorus (Asparagus Fern) Chlorophytum comosum (Spider Plant) Erige ron karvinskianus (Seaside Daisy) Tradescantia albiflora (Wandering Jew) 64. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works. 65 The construction certificate must not be issued unless engineering details are provided for the new front fence retaining wall. 66 Deleted. CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE 67. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate. 68. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work). 69. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project. 70. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with: (a) A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act. (b) A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act. (c) Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act. (d) Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council. 71. To ensure structural stability, engineer's details (in duplicate) of retaining walls, prepared by a qualified practising structural engineer, shall be submitted to the Principal Certifying Authority for consideration prior to the issue of the Construction Certificate. 72. To protect the amenity of the adjoining property, all fill under the slab is to be contained by dropped edge beams. Engineers details are to be submitted to and approved by the Principal Certifying Authority prior to the issue of the Construction Certificate. 73 Deleted. 74. Deleted. 75. Deleted. 76. For stormwater retention and quality control, provision of a five (5) metre long first-flush absorption trench within the subject property designed to capture and retain the first-flush stormwater runoff from the subject property after which runoff bypasses the trench and reverts to the main drainage system. Design drawings are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. NOTE 1: The first-flush system may be achieved by the use of a separate low-level outlet from a pit located on the main drainage system. NOTE 2: Where practicable, runoff from driveway and landscaped areas is to be directed to the retention system in preference to roof runoff. NOTE 3: The trench shall be 700mm wide x 700mm deep and fitted with half round PVC (230mm radius) dome sections backfilled with crushed or round river gravel to within 150mm of surface level, surrounded with suitable geofabric and finished with topsoil. NOTE 4: The trench is to be at least 5 metres from private property boundaries and 3 metres from the footings of any structure. NOTE 5: A suitably designed litter and coarse sediment 450mm square grated arrestor pit is to be provided immediately upstream of the trench. NOTE 6: The trench is not to require excavation underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist's certification that such excavation will not affect the longevity of the subject tree(s). NOTE 7: Upon completion, certification from a suitably qualified person is to be submitted to the Principal Certifying Authority with respect to this condition being satisfied. NOTE 8: This requirement does not apply where the Applicant considers installation to be impractical. 77. For stormwater retention, provision of a 2000 litre rainwater tank within the subject property designed to capture and retain runoff from at least one roof downpipe after which runoff bypasses the tank and reverts to the main drainage system. Design drawings are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. NOTE 1: The tank is to be located at or above existing natural ground level. NOTE 2: If abutting a wall of the dwelling, the tank must be below the eaves line. NOTE 3: The tank must not be located on the front facade of a dwelling. NOTE 4: If the tank is to be attached to a structure then a structural engineer is to certify the adequacy of the design of the structure to carry the tank. NOTE 5: Maximum height of the tank is 1.8 metres above natural ground level where installed along the side boundary setback of a dwelling. NOTE 6: The tank is to be a commercially manufactured tank designed for the use of water supply and to be installed in accordance with manufacturers specifications. NOTE 7: The tank is to be located above an available landscaped area so that the tank may be readily used for watering purposes. NOTE 8: The tank is to be fitted with a standard garden tap or similar which is to be clearly marked as not to be used for drinking purposes. NOTE 9: The tank is to be fitted with measures to prevent mosquito breeding. NOTE 10: Upon completion, certification from a suitably qualified person is to be submitted to the Principal Certifying Authority with respect to this condition being satisfied NOTE 11: This requirement does not apply where the Applicant considers installation to be impractical. 78. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage. 79. The property drainage system shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces and in accordance with Council's Stormwater Management Manual. Design drawings and calculations are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. NOTE 1: The property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist's certification that such excavation will not affect the longevity of the subject tree(s). NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA. NOTE 3: All enclosed floor areas, including habitable and garage floor levels, are to be safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices. 80. Full design drawings of the proposed method of achieving the requirements for on-site stormwater detention and supporting calculations are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. 81. DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the Application. Footpath and driveway levels at the property boundary/road alignment are to be obtained from Council's Technical Services Department prior to release of the Construction Certificate. All footpaths and driveways are to be constructed strictly in accordance with Council's specifications, "Construction of Gutter Crossings and Footpath Crossings" which is issued with alignment levels after payment of the appropriate fee. The grading of such footpaths or driveways outside the property are to comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant, and this may be affected by the alignment levels fixed by Council. Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations. Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level (if applicable) of the proposed driveway. 82. Prior to the issue of the Construction Certificate, longitudinal sections are to be provided along both sides of the proposed driveway from the centreline of the street to the proposed garage/carport, demonstrating that vehicular access can be obtained using grades of 20% (25% maximum) or less without scraping the underside of a car. All changes in grade are to comply with AS 2890.1-1993. If a new driveway crossing is proposed then the longitudinal sections must incorporate the driveway crossing levels as issued by Council upon prior application to Council's Technical Services Department. 83. Deleted 84. The property shall support a minimum number of 4 trees that will attain 13.0 metres in height on the site, to preserve the tree canopy of Ku-ring-gai, in accordance with Council's policy of Tree Retention/Replenishment on Residential Allotments adopted 26 April 1988. The additional tree/s to be planted, shall be shown on the Landscape Plan/Site Plan. 85. The 4 trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council's Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species. 86. As the subject site is located within 100 metres of bushland a minimum of 75% of the tree plantings shall be locally occurring native species derived from the Sydney Sandstone Gully Forest assemblance of vascular plants. 87 Deleted CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING 88. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works. 89. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with: (a) A Construction Certificate is to be obtained in accordance with Section 81 A(2)(a) of the Act. (b) A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act. (c) Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act. (d) Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council. CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION 90. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the front fence/retaining wall, the building works for the building to be occupied comply with the plans and specifications approved by this development consent including completion of the landscape works any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations. 91. Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified person that the works were carried out in accordance with the approved plans. Certification is to be provided to the Principal Certifying Authority prior to occupation. 92. Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed drawing issued by a suitably qualified and experienced engineer or surveyor is to be submitted to the Principal Certifying Authority prior to occupation or issue of an Occupation Certificate. NOTE 1: The Certificate is to be with respect to compliance with: (a) The soundness of the structure. (b) The adequacy of the outlet control mechanism to achieve the discharge as specified. (c) The capacity of the detention storage as specified. (d) The size of the orifice or pipe control fitted. (e) The maximum depth of storage over the outlet control. (f) The adequate provision of a debris screen. (g) The inclusion of weepholes in the base of the outlet control pit. (h) The provision of an emergency overflow path. NOTE 2: The certifying engineer and surveyor is to also complete and submit Council's standard On-site Stormwater Detention Certification sheet. NOTE 3: The Works-as-Executed drawing(s) are to include all relevant levels including: o invert levels o surface or pavement levels o floor levels including adjacent property floor levels o maximum water surface level to be achieved in the storage zone o dimensions of basin(s), tank(s), pit(s), etc. o location(s) of basin(s), tank(s) and distances from buildings, boundaries, and easements, etc. o storage volume(s) provided and supporting calculations o size of orifice(s) 93. The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on the property prior to occupation or the issue of an occupation or subdivision certificate. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council. For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. 94. In order to maintain Council's database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer's certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to occupation, the issue of the Occupation Certificate or the issue of a subdivision certificate. 95. Prior to occupation, the issue of an Occupation Certificate or the issue of a Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council's Development Engineer. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council's Development Engineer. BUILDING CONDITIONS 96. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and documentary evidence of compliance with the relevant terms of the approval/standards of construction detail in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages: (a) Reinforcement AND circulation lines in position prior to any concrete being poured, placed or sprayed. (b) Drainage lines and circulation lines outside the pool area prior to any backfilling. (c) Safety fences, gates and latches erected and installed - pools are not to be filled unless a satisfactory inspection of the pool fencing has been made. (d) Final Inspection - on completion when all conditions of approval have been met including soundproof enclosures, resuscitation posters, depth markers installed and all landscaping completed. If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117. Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection. 97. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify. (a) Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing. (b) Wind bracing details complying with AS 1684-1992 National Timber Framing Code, AS 1170.2-1989 Wind Load Code or AS 4055-1992 Wind Loads for Housing Code. (c) Upper floor joist details, engineered or complying with AS 1684-1992 National Timber Framing Code. (d) Retaining walls and associated drainage. (e) Wet area waterproofing details complying with the Building Code of Australia. (f) Mechanical ventilation details complying with Australian Standard 1668-1993 Mechanical Ventilation & Airconditioning. (g) Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code. (h) Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent. 98. Any mechanical ventilation installed in a dwelling shall comply with the requirements of Part 3.8.5.0 of the Building Code of Australia Housing Provisions. Documentary evidence of compliance is to be obtained from a suitably qualified person and submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 99. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified persons (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages: (a) All sediment and erosion control and tree protection measures and installations in place on the site prior to the commencement of any earthworks, excavations or other work. (b) Any pier holes and/or foundation material. (c) Any steel reinforcement prior to placement of concrete. This includes all reinforcement of floors, slabs, trenches, columns, beams and stairs (if components of this structure). (d) Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering. (e) Any stormwater drainage works prior to covering. (f) The completed landscape works in accordance with the approved plans. (g) The completed structure prior to occupation. The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development. If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117. Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection. 100. To ensure compliance with this determination the building shall be set out by a Registered Surveyor and the Survey Report shall be lodged with the Principal Certifying Authority prior to the external wall construction proceeding above floor level. 101. To ensure compliance with this determination a Registered Surveyor's Report confirming reduced levels as shown on the approved plans with particular regard to the future finished level of the ground and first floors floor shall be submitted to the Principal Certifying Authority on completion of that floor. 102. All structural timber members subject to weather exposure shall have a durability class rating of 2 or better in accordance with Australian Standard 1684.2-1999 (National Timber Framing Code), or be preservative treated in accordance with Australian Standard 1604-1980 (Preservative Treatment for Sawn Timbers, Veneers and Plywood). 103. A fully detailed first floor joist layout (in duplicate) complying with the National Timber Framing Code or accompanied by a structural engineer's Certificate of Adequacy shall be submitted to and approved by the Principal Certifying Authority. 104 For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing. 105. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions: Risers: Maximum 190mm Minimum 115mm Going (Treads): Maximum 355mm Minimum 240mm Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway. 106. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements: (a) A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or (b) Smoke alarms which: (i) comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and (ii) are connected to the mains and have a standby power supply; and (iii) are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions. To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority. 107. Termite protection which will provide whole of building protection in accordance with Australian Standard 3660 - "Protection of Buildings from Subterranean Termites" is to be provided. Council has a non chemical policy for termite control but will consider proposals involving physical barriers in combination with approved chemical systems. Handspraying is prohibited. Where a monolithic slab is used as part of a termite barrier system, the slab shall be constructed in accordance with Australian Standard 2870.1 or as designed by a structural engineer but in either case shall be vibrated to achieve maximum compaction. To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 108. The following are required details and must be submitted to the Council on completion of the works. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify. (a) Wet area waterproofing details complying with the Building Code of Australia. (b) Mechanical ventilation details complying with Australian Standard 1684 Mechanical Ventilation & Airconditioning. (c) Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code. (d) Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent. (e) A Compliance Certificate that the building is protected and complies with Australian Standard 3959 Construction of Buildings in Bushfire Prone Areas. ________________________ J S Murrell Commissioner of the Court Mp/ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.